Pot 101 Update: What are the laws surrounding second-hand marijuana smoke?

California’s recreational marijuana laws went into effect at the start of 2018. But there are still many questions surrounding what's legal and what's not.

Earlier this year, we published a Pot 101 guide, which answers some of the most common questions about marijuana. Throughout the year, we’ve continued to update it with answers to readers’ questions.

We have received many questions, but at this time we’re choosing to answer one that has been asked several times: Is it legal to smoke marijuana at your home despite complaints from neighbors about the drifting smoke?

"The police then showed up to my house and told me that it was illegal to smoke on my property because of second-hand smoke," one reader wrote in an email. "Is smoking on MY property illegal when it comes to others inhaling the second-hand smoke?"

The short answer is no, it is not illegal to smoke on private property. However, if the smoke is causing a disturbance to your neighbors, it could fall under city or county nuisance laws.

As mentioned in our January article, the rules regarding smoking within your residence are different for owners and renters. If you are renting, your landlord can restrict the use of cannabis in or around the property, or completely prohibit it, under Proposition 64.

If you are the owner, you can lawfully smoke within the residence. But, the wafting smoke from your private property can fall under local nuisance ordinances, such as in Sacramento. Any activity on private property that can negatively impact others, such as dogs barking or bad odors, could be considered a nuisance. Some cities, including Sacramento, are considering implementing specific ordinances addressing the issue.

"We plan to take a look at this issue in greater depth in the coming months," said Joe Devlin, Sacramento’s commercial cannabis czar.

Different types of marijuana sit on display at Harborside marijuana dispensary, Monday, Jan. 1, 2018, in Oakland, Calif. Starting New Year's Day, recreational marijuana can be sold legally in California. (AP Photo/Mathew Sumner)

Several local governments across the state already have ordinances concerning marijuana odors, such as the city of San Luis Obispo and Sonoma County. But those are directed towards smell coming from marijuana growers, not smokers.

Sonoma County has an ordinance that says that all cultivation structures must have odor control filtration and ventilation systems adequate to prevent an odor, humidity, or mold.

But second-hand marijuana smoke isn’t seen as a large issue, according to marijuana rights attorney Michael Cindrich. He says the most similar case to this issue he’s dealt with is a neighbor dispute over incense.

"Some people may be concerned about the cannabis smoke, the smell of cannabis smoke, or potential health effects of second-hand cannabis smoke, but I believe these issues will be addressed with the regular nuisance laws that we currently have on the books," Cindrich said.

Police involvement

If your neighbors believe you are causing a nuisance, they could call the police who then could give out warnings, hand out notices of the violation, or issue fines. The dispute could also be taken up in a private civil setting where your neighbor could sue for damages.

"Generally, it would more likely be done in a civil context," Cindrich said. "Someone may attempt to, in some cases, obtain some type of restraining order to prevent the nuisance from continuing."

In Sacramento, police will respond to the complaint out of courtesy, but they say there is not a lot they can do. Both the police department and Devlin said the city does not receive calls often from neighbors complaining about marijuana smoke.

"We realize that it does offend people, but there’s not really a recourse that we have because it is legal to smoke within your residence," said Linda Matthew, Public Information Officer with the Sacramento Police Department

Health effects? 

Neighbors should be concerned about the health risks of breathing in second-hand smoke. Research shows that marijuana smoke exposure does carry pulmonary and cardiovascular health risks.

Dr. Matthew Springer is a researcher in cardiovascular disease at UC San Francisco. He says if you try to keep your kids away from second-hand tobacco smoke, you should keep them away from marijuana smoke as well.

"A lot is not known but what I think most people ignore is that cigarette smoke is a lot more than just nicotine and marijuana smoke is a lot more than just cannabinoids," Springer said. "And all those chemicals— there’s thousands of chemicals in tobacco smoke, and they’re basically there in the marijuana smoke."

In any case, concerning disputes over marijuana smoke, both Cindrich and the Sacramento Police Department recommend neighbors try to work out the problem between themselves.

"They should try to come to some amicable solution of the matter without involving authorities, without having anyone required to go to court," Cindrich said. "I think that generally is the best way to resolve a dispute such as this."

While outside a dispensary in Sacramento, marijuana user Zack Sapunor said he tries to be courteous when it comes to smoking at his house.

"My neighbors don’t like it if you smoke near their open window," said Sacramento resident Zack Sapunor. "So I just move away from it. I’m just glad it’s legalized."

Related:

Pot 101: Facts you should know about California’s legal marijuana

Pot 101 update: Are there limits on smoking pot at home near kids? Where else is it legal to smoke?

How much privacy do you have when you buy marijuana in California?